Austin partner William Childs wrote an article published in Law360 this week, Peering Behind the Peer Review Curtain.

In part, his article notes:

The U.S. Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, in interpreting Rule 702 of the Federal Rules of Evidence, laid out various nonexclusive criteria for consideration in evaluating proposed scientific evidence. One of them was peer review.

As the court put it: “The fact of publication (or lack thereof) in a peer reviewed journal … will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.”

Compared to other Daubert factors (or those described in the subsequent comments to Rule 702), the presence or absence of peer review may seem more binary than other factors — i.e., easier for a court to evaluate: It’s either there or it’s not, it seems. Not so, however, either in the traditional sense of peer review, or in the changing world of things that now get called peer review.

Given this perceived simplicity, though, it frequently gets less attention than it deserves. Litigants should think about peer review as being more complex than it appears, and in some specific contexts, additional exploration—whether through discovery into your adversaries’ experts, or early investigation of your own potential experts—may make sense.